Orrin Hatch

Mr. HATCH

Mr. HATCH. Mr. President, do I have any time remaining?

Mr. HATCH. Mr. President, I agree with 80 percent of what the distinguished Senator has said during this debate. The fact is, the very name of this bill makes the very point I am making. It is the ``Matthew Shepard Act,'' a heinous crime committed against him where both people were prosecuted and sentenced to life; in the Byrd case, sentenced to death. We are taking care of these problems. There has been no showing by the other side that the State prosecutors are incapable of doing so. The fact is, we do not need a massive Federal piece of legislation that would require the Federal Government to get into areas that clearly are not in interstate commerce but are subject to State laws that are being enforced. That is a very important point. We should be very loath to go beyond that point. I thank my very loquacious colleague who feels very deeply, but I feel deeply, too, about the issue, about these people, about what is happening, and what I am saying constitutionally.

Mr. HATCH. Mr. President, with that fine concession, I yield back the remainder of my time.

Mr. HATCH. Mr. President, I thank my colleague. He is accurate on everything except one thing; that is, the 6 million children whom we were supposed to cover, we did on an annualized basis, but really only about 4.5 million were covered fully. I wanted to add that little bit because it is apparent this program has worked. It is apparent it has worked well under this administration as well as under the Clinton administration. It is apparent it has helped millions of kids who otherwise would not have been helped. It is apparent it has helped the children of the working poor. But it has not helped all of those who deserve that help. And, over the long run, if we help them today, it will save us money and problems in the future. Frankly, this is an important debate. I acknowledge there are people who disagree. There were back then when we first created CHIP. But the fact is, this is a program which has worked. The administration has admitted it has worked. The Governors have admitted it has worked. Maybe it is mired in politics that I wish we were not mired in. My attitude is, let's think of the kids. If there is a way of improving it, I am certainly open to that, but we have come a long way, in a bipartisan way, to get where we are. That is not an easy accomplishment in a Congress that has been pretty partisan in many respects. I do not think some have really recognized how difficult it was to get to where we are and how many concessions both sides have made, in particular the House. So I think this has been an important part, maybe, of the debate this morning. But at this point, how much time would the distinguished Senator from Georgia want?

Mr. HATCH. Mr. President, can I ask how much time the Senator would desire?

Mr. HATCH. No objection.

Mr. HATCH. Eight minutes, was it?

Mr. HATCH. Mr. President, I yield 8 minutes to the Senator from Georgia.

Mr. HATCH

Mr. HATCH. Mr. President, I remember it so vividly. I remember it as if it were yesterday. But it was 10 years ago that Senator Kennedy and I stood outside this great building, we stood on the Capitol lawn under a great oak tree, and announced final passage of the Children's Health Insurance Program legislation. History was made that day, and it has been made every day since. A true, bipartisan partnership--forged on the strength of good intentions, motivated by a simple desire to help our country's most vulnerable citizens, and nurtured in a politics-free atmosphere--led to enactment of CHIP, arguably the most significant advancement in children's health in this modern era. Ten years ago, Senator John Chafee and Senator Rockefeller, Senator Kennedy and I, began a partnership that led to the Children's Health Insurance Program. That legislation, enacted in under 5 months--to show you its potency--was founded on a very basic premise: that we needed to provide incentives to States to help them design plans to provide health insurance to the poorest of the poor families not eligible for Medicaid. Senators Rockefeller and Chafee argued for a Medicaid expansion. Senator Kennedy and I argued for a State-directed block grant. The final law was an innovative, workable blend of the two. Since that time, almost 6 million children have become insured under CHIP. They are leading healthier, more productive lives. Their parents can sleep at night, resting easy that their children will be taken care of if they become ill. That peace of mind, that giant step toward a healthier population, is the mark of a compassionate, caring Congress. It was a mark toward reassuring the American people that the Government hears their concerns loud and clear and stands ready to act. Let us hear that same message today and let us provide our constituents with that same measure of reassurance as we consider this bipartisan agreement to extend CHIP for another 5 years. This year, as Finance Committee Chairman Max Baucus, Ranking Republican Chuck Grassley, Subcommittee Chairman Jay Rockefeller, HELP Committee Chairman Kennedy, and I began our discussions of the Child Health Insurance Program Reauthorization Act--or CHIPRA--we agreed there were several key principles that must be embodied in any extension of the original act. The bill we consider today is built on those principles. First, we agreed that the proposal must be fully financed or else it would be irresponsible for us to legislate. Next, it must retain the original character of CHIP--that is, it must be a flexible, State-directed program. Senator Kennedy talked about that this morning. We worked to see the budget resolution provide $25 billion in its baseline to extend the current levels of coverage, and up to $50 billion more if it were fully financed. Indeed, this bill is fully financed. The costs above the budget baseline have been certified by Joint Tax to be covered by an increase in the tobacco excise tax. We agreed that we wanted to continue coverage for those who are currently eligible, but also to conduct extensive outreach to enroll those who may be eligible but aren't enrolled. Our bill provides health coverage to almost 4 million low-income, uninsured children through incentives to states to enroll these uninsured children in their programs. We agreed that coverage of childless adults--a policy Senator Kennedy and I never intended nor envisioned when we wrote our original proposal--we agreed that policy needed to stop. Under our bill, childless adults currently covered under CHIP will be phased out of the program and transitioned into Medicaid. I cannot emphasize this enough. Today, 6 million children receive health care through the CHIP program--25,095 of these children are from Utah. That would not have happened absent congressional action in 1997. In addition, there are an added 6 million children in families with income under 200 percent of the Federal poverty level--or FPL--who are uninsured and eligible for either CHIP or Medicaid. According to the Congressional Budget Office, the bipartisan, compromise bill covers close to 4 million of these children--3.7 million to be precise--a significant step by any measure. This is a crucial, crucial part of the bill, an achievement that, while expensive, really goes to the heart of what we are trying to achieve with the original CHIP, and now CHIPRA. For several weeks now, we have heard a crescendo of opposition to our legislation from officials at the White House, and most recently, our President. Needless to say, this is disheartening for me. It is difficult for me to be against a man I care for, my own personal President, on such an important bill. I have been and will continue to be one of the President's strongest supporters in the Congress. He is a good man. He means well, but he does have to listen to his staff--or at least does listen to his staff, and I believe he has listened to them in a way that throws barriers up to this bill. I wish I had had an opportunity to persuade him on the merits of this bill before he issued a veto threat. I did send messages down there, talked to top people in the administration, but I wish I had had a greater opportunity. Indeed, I am sympathetic to many of the concerns he raises. When he says that we need to be careful about creating a one-size- fits-all health plan for our children, I believe he is right. When we wrote this program in 1997, we wrote it based on the foundation of giving States the flexibility to design their own CHIP programs. Each State is different--what is good for Utah may not be good for California or Massachusetts. It is important for States, not the Federal Government, to determine which benefits should be covered. After all, CHIP is a State block grant program, not a Federal entitlement. That is why we are debating its reauthorization today. The President has also raised concerns about the Federal dollars that our bill spends on the CHIP program over the next 5 years. I agree that $60 billion is a lot of money. But in comparison to what the House passed bill proposed earlier this year--they started at $100 billion and came down to $75 billion--it is much more reasonable. And, as the Congressional Budget Office has told us, it is relatively more expensive to find and cover the low-income children who still do not have health coverage compared to those who are enrolled today. That is why I was able to agree with the Senate number of $35 billion, in addition to the $25 billion already built in the budget baseline for CHIP--although, to be fair, it is higher than I would have liked. But this is a classic compromise and friends in the House wanted more. Some of them. It is unfortunate that the President has chosen to be on what--to me--is clearly the wrong side of the issue. Indeed, this is not the bill I would have written if I had full license to draft. That is true for the original SCHIP law as well. But, it is hard to envision any major law being written by one person and enacted without change. That is not how good legislation is made. Indeed, 10 years ago, Senator Kennedy and I spent many, many hours proposing, arguing, compromising, and refining, in drafting session after drafting session. Some days it seemed we disagreed more than we agreed. It was hard, hard work. But it was a labor of love. We had a full discussion. We explored all the issues together. We found compromises where we needed to. That is how good legislation is made. Sometimes even bad legislation, but this is good legislation. It pains me that we did not have this full discourse with the administration on CHIPRA. It pains me that some have been slow to recognize the realities of this new Congress. Indeed, what some political pundits termed The Trifecta--a Republican House, Senate, and Presidency, is no more. I thought I should point out this fact for those in this body who may not have noticed. And so it is no secret, no surprise, that a Democrat-led Congress would seek a more expansive program. Yet it is to the great credit of our Democratic leaders that they recognize our country's fiscal realities and that they held the line at the additional $35 billion figure. To be sure, I would have been comfortable with a lower number, just as Speaker Pelosi and Chairman Rangel and Chairman Dingell and Chairman Baucus and Chairman Rockefeller advocated for a much higher number. So, again, we have that spirit of compromise which was the hallmark of CHIP in 1997. I must say it has also been difficult to conflict with my good friend from Utah, Health and Human Services Secretary Mike Leavitt. He was an expert in health care policy when he was Governor of Utah, and he is even more of a leader on the national level now. I know the concerns he expressed to me about the CHIP bill in 1997. I recall our many conversations when he advocated for a greater Federal role in health coverage for needy children. And I also recall his admonitions that we could do better by the children and their parents if we were to provide the States with much-needed flexibility. The final CHIP block grant reflected that flexibility I believe, and Mike Leavitt's good counsel helped us improve the law. I hear Secretary Leavitt's concerns when he says that he is concerned about paying for the reauthorization of this program through tobacco taxes. I am not comfortable with raising taxes either. However, when we first created the CHIP program in 1997, we believed that it was entirely fitting that the bill be funded through incentives to decrease the use of tobacco, a leading killer of Americans young and old. And, therefore, I am comfortable with raising tobacco taxes to pay for our CHIP program. I understand his concerns about crowd-out and higher income children dropping their private health coverage in order to be covered through CHIP when CHIP was created to provide health care for low-income children. And I agree with him 100 percent when he says that we are only fixing part of the problem by reauthorizing CHIP and not addressing what's wrong with the entire health care system. He and I have visited on several occasions on these issues. I have benefited by that guidance, and I sincerely regret that ultimately we disagree on this bill. But I am willing to work with him to try to come up with an overall health care plan that will work. I might add that I believe we have had an honest misunderstanding which has not only been raised by Secretary Leavitt but the President as well. They say that our legislation allows families with annual incomes of $83,000 to be covered under a State CHIP plan. Let me be clear. Our legislation does not permit a State to cover these families unless the Secretary of Health and Human Services approves the State's application to cover individuals at that income level. We do not change current law and put Congress in charge. We leave that decision in the hands of the Secretary. We do not take away the Secretary's authority to make that decision. I hope that point is clear. At this point, it may be helpful for me to outline for my colleagues exactly what this bill does. As I stated earlier, CHIPRA is a 5-year reauthorization which spends an additional $35 billion in Federal dollars on the CHIP program, in addition to the $25 billion in Federal dollars already built into the budget baseline. So, in total, we are spending $60 billion in Federal dollars over the next 5 years on the CHIP program. And I know that sounds very expensive, especially to my Republican colleagues. In contrast, the bill passed by the House in August would have spent an additional $50 billion on CHIP on top of the $25 billion in the budget baseline for a grand total of $75 billion. As this chart indicates, we spend far more Federal money on Federal health programs then we are suggesting that we spend on the CHIP program over the next 5 years. This chart compares projected spending in Medicare, Medicaid and the National Institutes of Health to the spending that we authorize for the CHIP program from fiscal year 2008 to fiscal year 2012. For the Medicare Program, CBO projects that the Federal Government will spend $2.6 trillion, yes, trillion dollars over the next 5 years. For the Medicaid Program, CBO projects that the Federal Government will spend $1.22 trillion over the next 5 years. For the NIH, we project that the Federal Government will spend approximately $150 billion over the next 5 years. In contrast, our bill authorizes $60 billion over the next 5 years. I think these numbers speak for themselves. We can spend billions, even trillions of dollars on programs for the elderly, disabled, very poor and for medical research but spending $60 billion to provide health care for the children of the working poor causes the President to issue a veto threat? Something here just doesn't add up, especially when you look at these numbers on this chart. The spending for the CHIP program hardly shows up on this chart compared to the other three programs. Let me remind my colleagues that this legislation is built on compromise. Is it perfect? Far from it. But does it cover more CHIP-eligible kids, our ultimate goal? Absolutely. And that's why I am a strong advocate for this bill and urge my colleagues to support it. This is a good compromise. It is a $35 billion bill--not a $50 billion bill. The House ultimately agreed with the Senate on this issue. I do not blame them. They are very sincere in thinking you can just throw money at these things and you will do more good. It does not include Medicare provisions. The House also dropped its insistence on this issue, even though there was tremendous pressure to include Medicare provisions such as a fix for the sustainable growth rate formula flaw, which is the physician reimbursement rate, in 2008. But let me be clear, all of us agree that these important Medicare issues must be addressed by the end of this year. Just not in this bill. Before I continue, I would like to note that both the $35 billion limit and agreement not to include Medicare provisions were huge concessions by the House of Representatives. Honestly, I never thought that the House leadership would agree to those terms; and, trust me, those were the two conditions that were nonnegotiable as far as I was concerned. The moderation on the part of House leaders is a true indication that they are serious about getting a bipartisan CHIP reauthorization bill signed into law. Key provisions of this legislation are the tools and resources it provides to enroll more of the CHIP-eligible children. As I previously stated, in addition to the 6 million children already covered by CHIP, this bipartisan compromise bill would provide coverage to almost 4 million more uninsured, low-income children. The bill no longer allows new State waivers for adults to receive their health care through CHIP. Childless adults will be phased out of CHIP and will be covered through Medicaid. States that currently cover parents may continue to do so; but after a transition period, States will no longer receive the enhanced CHIP match rate for covering parents. The legislation rewards States for covering more low-income children by establishing a CHIP performance bonus payment for States that exceed their child enrollment targets. We worked hard to make certain there will be no funding shortfalls with this legislation. The bill provides States adequate money in their CHIP allotments so they will not experience funding shortfalls in their CHIP program. As a safeguard, we created a Child enrollment contingency fund for States that experience a funding shortfall as a result of enrolling more low-income children. Shortfalls have been a serious problem. They are something we want to avoid. In addition, the proposal clarifies that States will only have 2 years to spend their CHIP allotments. Today, States have 3 years to spend their CHIP allotments. It gives States a new option to provide coverage to pregnant women. Today, pregnant women are only covered in CHIP if the State has been granted a waiver to cover pregnant women or through the Administration's unborn child policy. This is a proposal Senator Kennedy and I seriously considered including in 1997. We ultimately concluded that the cost of childbirth hospitalization was so expensive, then, about $4,000 a birth, that the greater public good could be achieved if we focused those resources on providing more insurance policies to needy children. It was not a policy we undertook with great comfort. Indeed, Senator Kennedy argued strongly for coverage of pregnant women. But ultimately, we chose to advocate for the policy that covered the most children. Today, we are both satisfied that the bill embodies the correct policy, if I may speak for the Senator from Massachusetts on this point. CHIPRA provides beneficiaries and their families with coverage choices. If the State provides premium assistance through its CHIP program, CHIP beneficiaries may choose to be covered through the State CHIP program or receive premium assistance to receive health care through a private health plan. And States like Utah that already have premium assistance programs for their CHIP beneficiaries would have their programs grandfathered in, in other words, their programs would continue to exist. It also provides CHIP beneficiaries with dental benefits, states will have a choice of four dental benchmark plans to provide to their CHIP beneficiaries, the dental benefits included in the House-passed bill; a benefit package equivalent to the federal employee health plan dental benefit that covers the most children; a benefit package equivalent to the State employee dental plan that covers the most children; or a benefit package equivalent to the most popular commercial dental plan that covers the most children. As my colleagues are aware, I have a long record of advocating for better dental care for children. It alleviates so many health problems in the future. In fact, in 2000, I introduced the Early Childhood Oral Health Improvement Act, which created grant programs to improve the oral health of children under 6 years of age. This bill was included in the Children's Health Act which was signed into law on October 17, 2000. So, I know how important dental health is for children. At the same time, it is fair to say that I have been concerned about mandating that States provide dental coverage for two basic reasons. First, the inherent nature of CHIP, and a primary reason it could be enacted in a Republican-led Congress, is that it was a State block grant. Mandates move us away from that important framework. Second, the dental coverage that some advocated be included in this bill is more generous than most private-sector policies. Thus, including such coverage would be a giant incentive for crowd-out, that is, dropping private coverage in order to seek a more generous public coverage. Ten years ago we called it substitution. Today, we call it crowd out. But it is the same thing. I will not sugar coat it. It is a problem. It is a concern. And, we should take every step we can to keep it from occurring. I think the dental policy we adopted was a good compromise, and I appreciate my colleagues agreeing to my suggestion for this coverage. Our legislation also limits the Federal matching rate that States will receive for covering individuals with family incomes over 300 percent of FPL in their CHIP plans. It clarifies the Administration's policy on crowd-out and provides States with guidance on how to ensure that their low-income children are covered through the CHIP plan before expanding coverage to higher income children. Another key element of this bill is that it provides States with funds for outreach and enrollment. It gives States a time-limited option to speed up enrollment in CHIP and Medicaid by using eligibility information from designated express lane agencies. The bill gives States the option of verifying citizenship for both Medicaid and CHIP by submitting names and Social Security numbers to the Commissioner of Social Security. It creates a new quality initiative through the Secretary of Health and Human Services, in consultation with the States, to develop evidence-based pediatric quality measures in order to evaluate the quality of care for children. I introduced legislation to develop pediatric quality measures with Senators Bayh and Lincoln and much of our bill is incorporated in this bipartisan compromise legislation. The proposal includes mental health parity in the state CHIP programs so that if a State offers mental health coverage in its CHIP plan, it must be on par with limits for medical and surgical services. Senator Gordon Smith has done a stellar job bringing awareness about the need for mental health benefits for children and this provision is modeled after legislation that he introduced with Senator John Kerry of Massachusetts. At this point, I would also like to refute some of the inaccurate statements that I have heard the last few days regarding our bill. First, some have alleged that our bill allows the Federal Government to continue covering childless adults and parents through CHIP. Our bill puts the emphasis back on low-income, uninsured children. Simply put, our bill puts an immediate stop to States being granted future waivers to cover nonpregnant adults. In fact, the provisions included in the Senate-passed CHIP bill were included in the compromise, bipartisan CHIP bill. At the beginning of fiscal year 2009, States will receive lower Federal matching rates for childless adults and in fiscal year 2010, childless adults will not be covered under CHIP, they will be transitioned into Medicaid. At the beginning of fiscal year 2010, only States with significant outreach efforts for low-income uninsured children will receive enhanced match rates for parents; others will receive the lower Medicaid match rate FMAP for adults. Starting in fiscal year 2011, all States will receive a lower Federal match rate for parents. Those States covering more lower income kids or with significant outreach efforts will receive a Federal matching rate for parents covered under CHIP which is a midpoint between the Federal CHIP matching rate and the lower Medicaid matching rate. Other States will receive the lower Medicaid Federal matching rate, known as FMAP, for CHIP parents. Simply put, beginning in fiscal year 2011, States will no longer receive the higher CHIP matching rate for covering parents. Second, some criticize our bill and say it allows higher income children to be covered under the CHIP program. Today, States may receive an enhanced Federal matching rate for their CHIP program through waivers for all income levels. Our bill discourages States from covering higher income individuals in the CHIP program. After enactment of our bill, States with new waivers approved to cover those with family incomes over 300 percent of FPL would only receive the lower FMAP payment for these higher income individuals. In addition, States that cover individuals with incomes over 300 percent of FPL in their CHIP plans will have to submit a State plan to the HHS Secretary to show how it is addressing crowd-out for higher income children covered under CHIP. The State plan must be approved by the HHS Secretary before October 1, 2010; otherwise, the State will no longer receive Federal matching dollars for covering those over 300 percent of FPL in their CHIP plans. Third, some say our bill makes CHIP an entitlement program and almost doubles the Federal dollars spent on CHIP over the last 10 years. CHIP is not an entitlement program, it is a capped, block grant program, where States are given flexibility to cover their low-income, uninsured children. I admit that it works so well, nobody wants to abolish it, including the President and most everyone in this body. As to its cost, as I noted earlier, the 6 million children who are already covered by CHIP were easier to find that the current 6 million, low-income, uninsured children under 200 percent of FPL. CBO has explained it is much more expensive to find these uncovered children. That is why our bill gives States bonus payments for enrolling them. I hope their prediction does not prove true. If it doesn't, we will save money in the program. But if their prediction does prove true, there is still no excuse for enrolling these kids. I also believe it is important to note that, according to the Centers for Medicare and Medicaid Services, in 2005, we spent a total $1.98 trillion on our Nation's health care system. Private expenditures were $1.08 trillion and Federal spending was $900 billion. Total Medicare spending was $342 billion in 2005 and Medicaid was $177 billion in Federal dollars. Our bill today funds CHIP at $60 billion over five years--a fraction of the cost to provide care for low-income, uninsured children. Covering these children is worth every cent. Another common criticism is the myth that our bill allows States to cover children from families with annual incomes of $83,000. I have addressed this before, but it bears repeating. Our bill neither prevents, nor requires, States' coverage of families at higher income levels. Only the Secretary of Health and Human Services decides whether a State may cover families with incomes up to $83,000 per year under their State CHIP program, not Congress. Many have suggested, in error, that our bill allows illegal immigrants to be covered under CHIP. In fact, during the House debate, I heard some state incorrectly that our bill provides benefits to illegal immigrants and opens the door for CHIP and Medicaid benefits for illegal immigrants by substantially weakening a requirement that persons applying for such services show proof of citizenship. Nothing could be further from the truth. In fact, our legislation has specific language stating that no illegal immigrants will be covered under CHIP. For those who still don't believe me, it can be found under section 605, entitled No Federal Funding for Illegal Aliens. Let me just read what it says: ``Nothing in this Act allows Federal payment for individuals who are not legal residents.'' Finally, much has been said about the Centers for Medicare and Medicaid Services' recent guidance on crowd out. I will include for the Record a letter dated August 17, 2007, to the State Medicaid Directors from Dennis Smith, the director of the Center for Medicaid and State Operations for CMS. The purpose of this letter was to give the State Medicaid Directors guidance on how CMS will review state plan amendments or waivers to raise income eligibility limits under the CHIP program in the future. In this letter, CMS made it perfectly clear that the agency was very concerned about crowd-out and wanted States to target low-income, uninsured children under 200 percent of poverty before covering higher income children under CHIP. So in order for States to cover higher income children, CMS made it clear that States must cover 95 percent of their children under 200 percent of poverty before expanding coverage to higher income children. While I agree with the thrust of what the administration intended to achieve, I am not certain what Mr. Smith asks the States to do can be achieved. States have told us it is virtually impossible for them to determine how many of those low-income children are currently covered. Currently, good, solid data on the uninsured simply do not exist. So it is almost impossible to find good, solid numbers on the uninsured. On top of that, currently, States do not have to report income data to CMS. Therefore, we knew that it would be impossible for States to determine how many low-income, uninsured children live in their States and whether or not those children were receiving health coverage. We heard the States and we addressed their valid concerns in the bill by requiring that two studies will be conducted to study crowdout and figure out what States are doing to successfully cover low-income, uninsured children. Once the data are available, States covering individuals over 300 percent of poverty in their CHIP plans must submit to the HHS Secretary their plans for covering low-income children and reducing crowdout. If its plan is not approved by a certain date, a state would no longer receive CHIP money for covering those over 300 percent FPL with limited exception. To me, that sends a very clear message to all 50 States about the intention of the CHIP program--to cover low-income, uninsured children. Let me conclude by emphasizing to my colleagues that passing this legislation is the right thing to do. When we first wrote CHIP in 1997, our goal was to cover the several million children who had no health insurance coverage. These children were in a no-win situation--their family incomes were too high to qualify for Medicaid, but their families did not have enough money to purchase private health insurance. When Senator Kennedy, Senator Chafee, Senator Rockefeller and I worked on the original legislation in 1997, our goal was to cover the several million children who had no health insurance. Coverage of these uninsured children is still our top priority, and I believe our bipartisan CHIP bill will make a dramatic difference by covering almost 4 million additional low-income children. The bill we are considering is very similar to the Senate-passed CHIP bill and captures the true essence of the 1997 law. It is the true essence of bipartisan compromise. To be fair, it does not make any of us Republicans comfortable to face a veto threat from our President. It does not make me comfortable to face a veto threat issued by my colleague and good friend from Utah, Secretary Leavitt. However, as Senator Kennedy and I have been fond of saying to each other over the years, if neither side is totally comfortable, we must have done a good job. This is a good bill. It accomplishes what we have set out to do--to cover low-income children without health coverage. Yes, I admit, it is expensive. However, this is necessary spending when I think of the 6 million American children who are leading healthier lives because of our vision and commitment. And when I compare $60 billion to the trillions of dollars our Government will spend on health care, I believe it is a worthwhile benefit. We should not let the opportunity pass us by to build on that solid foundation and do even better for the children, our future. I will add one more point that I want my Republican colleagues to take to heart. This is a bipartisan compromise bill. It is not the House-passed CHIP bill that would spend $75 billion over the next 5 years on CHIP. In my opinion, the $50 billion CHIP legislation before the Senate is the better deal for the low-income children and the American people. It is my hope that my colleagues who disagree with me will take one more look at this legislation. On the House side, I would like to recognize the hard work of my House colleagues: Energy and Commerce Committee Chairman John Dingell; House Energy and Commerce Health Subcommittee Chairman Frank Pallone; House Ways and Means Committee Chairman Charlie Rangel; House Committee on Oversight and Reform Chairman Henry Waxman; and of course, the Speaker of the House, Nancy Pelosi. I also want to commend my Utah Governor, Jon Huntsman, Jr., for his continued support of legislation to reauthorize the CHIP program. In April, Governor Huntsman presented me with a proclamation expressing his and the Utah State Legislature's strong support for the CHIP program, which I greatly appreciated. In fact, Governor Huntsman and his staff have provided me with invaluable advice throughout this process. Utah's program, which covers 25,095 children, provides well- child exams; immunizations; doctor visits; hospital and emergency care; prescriptions; hearing and eye exams; mental health services; and dental care. Finally, I must commend my good friends and colleagues from the Senate: Finance Committee Chairman Max Baucus; Ranking Republican Member Chuck Grassley; Finance Health Subcommittee Chairman Jay Rockefeller; and the Senate Majority Leader Harry Reid. I would also like to mention all of the staff who put many hours into this bill and gave up time with their families to work on this bill-- Pattie DeLoatche, Patricia Knight, Karen LaMontagne, Peter Carr, Jared Whitley, Hanns Kuttner, Becky Shipp, Rodney Whitlock, Mark Hayes, Alice Weiss, Michelle Easton, David Schwartz, Jocelyn Moore, Ellen Doneski, Ruth Ernst, Kate Leone, Bridgett Taylor, Amy Hall, Bobby Clark, Karen Nelson, Andy Schneider, Wendell Primus, Ed Grossman and Jessica Shapiro. I would be remiss if I didn't mention some of the staff who laid the groundwork on the original CHIP law in 1997, particularly Patricia Knight, Rob Foreman, Bruce Artim, Nick Littlefield, David Nexon, Laurie Rubiner, Lisa Layman, Michael Iskowitz, Cybele Bjorklund and Mary Ella Payne. Mr. President, I remember so vividly 10 years ago when Senator Kennedy and I stood on this floor to argue for enactment of SCHIP. We had two posters. We had one of a little boy named Joey. And we had one of Joe Camel, the mascot for one manufacturer of cigarettes. We asked our colleagues, whom do you support? Joe Camel or Joey? It is somewhat ironic, even amazing, or even more--a reflection of history repeating itself--that I stand here today to pose the same question to my colleagues. Whom do you support: Joe Camel or Joey? Joey? He's now almost 20. The Camel? Haven't seen him for a while, have we? So, we are making progress. But there is much to do. This bill represents the congressional commitment to one of the most important goals we can strive for: a healthy population. We must start with the kids, and that is what H.R. 976 does. I would like to close by reading an excerpt from a letter written by Karen Henage, the parent of children are covered by the Utah CHIP program. Kim Henage writes, ``I firmly believe the CHIP Program gave our family the financial assistance and more so the emotional security (peace of mind) to survive our new start, so that we were able to make it make it through. We are a success story because of this assistance. I cannot express in mere words how much this meant to us. When we needed it, it was there for us. I wholeheartedly request your support of the continuation of this valuable program, that other families might survive as we did.'' I think Kim's letter says it all--we must pass this bill today so more families without health insurance will be able to become a CHIP success story like the Henages. I ask unanimous consent to print the above-referenced letter from CMS in the Record.

Mr. HATCH. I yield the floor.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to speak to an amendment that would increase the maximum Federal age limit at which a member of the military, who has been honorably discharged, may become a Federal law enforcement officer. Military servicemembers make extraordinary sacrifices on our Nation's behalf. They are the defenders of our freedoms, our liberties, and our security. We owe each of them a great debt, and any appropriate compensation we can offer is a step toward repaying that national obligation. Many of our brave soldiers joined the world's finest military when they were 18 years of age. Large numbers of them become career soldiers, serving 20 years or more before retiring. However, current U.S. law states that applicants to Federal law enforcement positions must be between 23 and 37 years old. A servicemember who joins the military at the age of 18 and serves honorably for 20 years falls outside this federally mandated age range. I am sure my Senate colleagues would agree that members of the military, with their training and experience, can be highly suited for positions in Federal law enforcement, and if otherwise qualified should not be prohibited from further serving their country by an arbitrary, maximum age limit. My amendment would increase the maximum age for Federal law enforcement recruitment to 47 years old for military personnel who receive an honorable discharge. This means that many more honorably discharged military members will be able to seek employment with Federal law enforcement agencies. This amendment is an important tool in both recruiting and retaining fine servicemembers. It is my hope that more would be willing to remain in the military, knowing that after they complete 20 years in uniform, they will still have the opportunity to serve our country as Federal law enforcement officers. I have heard from several servicemembers who are considering an early departure from the military so that they can become Federal law enforcement officers. It should be remembered that many of these soldiers already have the necessary security clearances for these positions. Furthermore, I believe Federal law enforcement training costs would be largely reduced because of the military training of these individuals. The American people need qualified, competent law enforcement officers, and what greater pool from which to draw than experienced and professional military retirees? I am anxious to see this arbitrary retirement limit changed for military personnel and I encourage my colleagues to support this important amendment.

Mr. HATCH

Mr. HATCH. Madam President, I won't take much time about SCHIP, only to say I hope our colleagues will vote for the SCHIP bill. It is a real bipartisan effort made by Democrats and Republicans over a long period of time with a lot of give by House Democrats and House Democratic leadership because they wanted a bill. I hope we pass that bill. I will identify my remarks to a large degree with the remarks of the distinguished Senator from Iowa who spoke earlier. Amendment No. 3047 Madam President, I wish to discuss an amendment addressing the subject of hate crimes that I have filed on this national defense bill. I do not think that hate crimes legislation should be attached to this defense bill. The issue of hate crimes has nothing to do with the matter before us, our national defense. Frankly, this Kennedy amendment has no relationship, as far as I am concerned, to this very important bill intended to help our military, and it should not be included on this legislation. Yet, as long as my colleagues insisted on filing a politically problematic hate crimes amendment to this legislation, it was important that we have a balanced debate. My amendment would provide Federal assistance to the States and localities in the prosecution and investigation of bias motivated violence. That is what we are talking about here: bias motivated violence. I want to be absolutely clear. No one--nobody in this entire body or institution--believes for one second that such crimes are ever acceptable. Nobody in this body believes that. So those who want to make political points by suggesting that are plain wrong, and they should stop. The question is: What is the proper role of the Federal Government in the prosecution of these crimes? This needs to be a matter that we keep in careful balance. Our States are the primary guarantors of our rights and liberties. As far as I can see, having watched it for years, the States have handled these crimes very well. In every case I can think of--there may be some exceptions, but I don't know of any--the State has handled these matters adequately and well and people have been prosecuted and convicted. Some have been put to death; others have been sentenced for life. The States are the primary guarantors of our rights and liberties. I think we must respect the hard and decent work of the States as they secure equal justice under the law for all of our citizens in the respective States. With due respect to my colleagues and good friends, Senators Kennedy and Smith, I do not think this amendment strikes the right balance. In fact, I think this amendment is not needed. It has plenty of difficulties. It is constitutionally very questionable. And frankly, it should not be on this bill. If they want to bring it up, they can do it separately. It should not be on the bill because the President indicated that he is not going to put up with this type of legislation on this bill. This is not because of a lack of dedication on his part in prohibiting hate crimes. He is as dedicated as anybody in this body to targeting these crimes, and that includes the distinguished Senator from Massachusetts. So I rise to oppose both hate crimes and the Kennedy hate crimes amendment. A conviction against bias-motivated violence does not justify supporting a proposal that is unwise, unnecessary, and unconstitutional. This amendment would create a new Federal criminal felony, punishable by up to 10 years in prison, for willfully causing bodily injury because of a person's perceived race, color, national origin, religion, gender, sexual orientation, disability, or--get this--gender identity. Senator Kennedy made a specific point earlier today that this new felony is not related to Federal jurisdiction. He said such a requirement would be ``outdated, unwise, and unnecessary,'' but that requirement is grounded in the Constitution itself. With all due respect to my friend from Massachusetts, the Constitution is not outdated, unwise or unnecessary. Not only does Congress lack authority to create such a freestanding hate crimes felony, the States are already handling this issue. The Kennedy proposal would end up treating the less serious bias crimes too harshly, putting people who committed misdemeanors under State law in Federal prison, and treating the most serious bias crimes too harshly, with no death penalty even for the most heinous murders as in the case of James Byrd in Texas. This bill goes further even than the Kennedy proposals of the past. Let me mention a number of problems that I perceive with Senator Kennedy's hate crimes amendment. First, as noted yesterday, the Kennedy amendment is different from the hate crimes bill offered in past Congresses. This amendment adds ``perceived . . . gender identity'' as a protected class. What does this concept mean? The Senate has held no hearings on the meaning of this phrase or how far this phrase would allow the courts to go. How far would some of the courts interpret this phrase? The bill's definition is vague; it raises more questions than it answers. Would this include wearing an earring? Would it include an assault of a man with long hair or a woman with short hair? What about a woman wearing long hair? Are all protected the same under Federal law? What about different kinds of clothing? Clearly, there would be cases that fall safely within the drafters' intent, but can Senators be confident of what this language means? I do not think so. Do they want to pass a law to put judges or juries in charge of interpreting the meaning of clothing and personal style? Again, there have been no hearings in the Senate to give any guidance to Senators for this vote. When the House passed this bill, the White House released a SAP promising a veto. To pass the Kennedy amendment is to jeopardize the Defense authorization bill altogether. The Justice Department has also indicated it supports the concepts found in my alternative proposal. There is no evidence that hate crimes go unprosecuted in the States. For example, as Dr. Coburn recently pointed out on the floor, the killers of Matthew Shepard--for whom this bill is named--were successfully prosecuted under State law. And recall that the killers of James Byrd in Texas several years ago were sentenced to death under State law. But there is no death penalty provided for in the Kennedy amendment. By the way, Senator Kennedy cannot make the case that the States are inadequate in their handling of these crimes. I don't think he can make the case the States are not doing a good job of handling these crimes. These kind of crimes are intra-State crimes. I do not think he can make the case there is a sufficient nexus of interstate commerce to justify what I consider to be the unconstitutional Kennedy amendment. The Senator from Massachusetts stated earlier that ``all hate crimes will face a Federal prosecution.'' If that is true, then prepare for a massive federalization of basic criminal law, which is handled well by the States. Maybe 100 years ago you could find States not enforcing hate crime laws, but I do not think you will find that today in any State in this Union. There is not a person in the Senate who wants those crimes to go unpunished. But the States are handling them well. Why would we bring the almighty arm of the Federal Government into these matters? There are also several reasons this bill is unconstitutional. Consider one: The Supreme Court held that certain of the criminal provisions of the Violence Against Women Act were unconstitutional because most crimes of violence against women were not interstate in nature. I have to admit I was a prime cosponsor, along with Senator Biden, of VAWA. I was somewhat disappointed in that decision, but that is the decision. That is our constitutional law. The Kennedy amendment would criminalize many physical and sexual assaults. The same constitutional issues are at stake. Again, I decry hate crimes. I do not believe there should be evil discrimination, bias discrimination, in any way, shape or form. I have always stood up for the rights of those who have been discriminated against. I may have differed on some bills, as I do on this one. But I decry these types of acts. But to federalize hate crimes legislation and to make it not only burdensome but very intrusive on the State's work in this area, I think, is the wrong thing to do. I hope my colleagues will consider some of these thoughts. I will speak in more detail tomorrow. But the fact of the matter is I think it is a real mistake, when the States are doing as good a job as they have been doing, when the very crimes they use to justify this bill were handled by the States and people were sentenced to long terms, or even to death, I think it is inadvisable for us to proceed on this amendment. Last but not least, the President said he is going to veto the bill if Senator Kennedy's amendment makes it in. I think it is wrong to put this amendment into this Defense Authorization Act. It has been wrong, as far as I am concerned, to have a lot of these amendments that have been brought up on the floor that have nothing to do with Defense authorization, or have everything to do with trying to score political points, at a time when we should have passed this bill 2 weeks ago and gotten it on its way to the House of Representatives and then to the President, so our soldiers will have the benefits this bill provides for. Adding hate crimes to it may lead to a veto of the whole bill. That would be just plain tragic, especially since we know of the President's suggestion that he will veto the hate crimes bill. So I am concerned about it. I understand Senator Kennedy's motivation on this. He wants to get it on a bill that has to pass both Houses of Congress. But it ought to be on a bill related to hate crimes or related to criminal law, not something that can scuttle this important Defense authorization bill. I personally feel badly that so many of these days have gone by with amendments that have nothing to do with the defense of our country or our soldiers in Iraq and Afghanistan and elsewhere around the world. I yield the floor.

Mr. HATCH

Mr. HATCH. Will the Senator yield?

Mr. HATCH. I thank the Senator for his kind remarks, which come from somebody who I know takes health care very seriously and has proven himself to be one of the leaders in health care. I personally pay tribute to the other Members who have also worked so hard on the SCHIP bill; in particular, Senator Kennedy. I remember back in the early days, when it was a lonely thing for Senator Kennedy and I to go around the country talking about helping the poor kids, the only ones left out of the health care system. It took a leading liberal such as Senator Kennedy and this poor, old beaten-up conservative to be able to do that. I am grateful we were able to come up with a bipartisan bill that the House was kind enough to work with us on. That was one of the rare bipartisan efforts this year that I would like to see more of in the Congress. I sure hope somehow or another we can get the CHIP bill not only authorized but passed and signed into law so these 10 million kids have a future from a health care standpoint. In any event, I did not mean to take so much of the Senator's time, but I wanted to thank him for his very kind and thoughtful remarks. His friendship is important to me. I personally congratulate him for his sensitive and very professional work on health care, not only in the House of Representatives but here as well.

Mr. HATCH

Mr. HATCH. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. HATCH. Mr. President, I ask unanimous consent that I be permitted to speak, and then the Senator from Alaska, Ms. Murkowski, be able to speak.

Mr. HATCH

Mr. HATCH. Mr. President, I want to address my colleagues for just a few minutes on the subject of nominations to the Department of Justice and to the Federal judiciary. Our obligation is the same for each, to focus on the qualifications of nominees through a process that respects the separation of powers. First, let me say that the President has made a first-rate nomination by choosing Judge Michael Mukasey as the next Attorney General of the United States. He will bring to this vital leadership post 16 years of private legal practice, 4 years as a Federal prosecutor, and 19 years as a Federal judge. He headed the Official Corruption Unit during his service as Assistant U.S. Attorney in the Southern District of New York. And he served as Chief Judge during his last 6 years on the U.S. District Court for the Southern District of New York. By any reasonable or objective measure, Judge Mukasey is clearly qualified to lead the Justice Department. I want also to draw attention to an aspect of Judge Mukasey's experience and record that makes him particularly qualified to lead the Justice Department at this challenging time in our history. The U.S. District Court is divided into 94 geographical districts. These districts' caseloads vary widely, reflecting the characteristics, demographics, and realities in those districts. The Southern District of New York, where Judge Mukasey served for 19 years and which he led for 6 years, is no different. Serving in that key judicial district led Judge Mukasey to confront the terrorist threat to America long before the 9/11 attacks. He presided over the prosecution of Omar Abdel Rahman and sentenced him to life in prison for his role in the 1993 plot to blow up the World Trade Center. When the U.S. Court of Appeals for the Second Circuit affirmed Judge Mukasey's decision, it took the unusual step of commenting specifically on how he had handled the trial. The appeals court said Judge Mukasey ``presided with extraordinary skill and patience, assuring fairness to the prosecution and to each defendant and helpfulness to the jury. His was an outstanding achievement in the face of challenges far beyond those normally endured by a trial judge.'' That is a remarkable statement. Appeals courts review lower court decisions, but very rarely do they comment in this manner on lower court judges. That case occurred before the 9/11 terrorist attacks. Ten years later, after those attacks, Judge Mukasey ruled that the President had authority to designate Jose Padilla as an enemy combatant against the United States and that, even as an enemy combatant, he must have access to his lawyers. Padilla was eventually convicted of providing material assistance to terrorists. Legal analyst Benjamin Wittes wrote about this case in the journal Policy Review and said that Judge Mukasey's decision was ``the single most compelling judicial opinion yet written on the due process rights of citizens held as enemy combatants.'' That is high praise indeed. This background and experience with national security and terrorism cases make Judge Mukasey especially qualified to lead the Department of Justice at this time in America's history. The Justice Department is being retooled and redirected in light of the war on terror, including creation of its new National Security Division. Many of the issues in this area may begin with legislation, but end up in the courts. Having someone at the helm with experience not only as a prosecutor but as a judge evaluating these very issues will be invaluable. In addition to these qualifications are important personal and character qualities which I believe we need in our leaders. A Federal judge's law clerks probably know better than anyone how the judge thinks, how he approaches the law, how he handles tough issues, and how he treats others. I ask unanimous consent to have printed in the Record a letter signed by 43 of Judge Mukasey's former law clerks.

Mr. HATCH. This letter describes his decisiveness and mastery of the law, as well as his fairness, humility, and commitment to public service. We must evaluate Judge Mukasey's qualifications and character through a process that respects the separation of powers. The Constitution gives the President authority to appoint members of his Cabinet, including the Attorney General. While the Senate has a role in checking that authority, ours is not a coequal role with the President, and we may not use our confirmation role to undermine the President's appointment authority. Some of my colleagues may want to use these nominations to fight policy or political battles. Those fights are for the legislative process or the oversight process, but not the confirmation process. Some of my colleagues have even hinted that they may manipulate the confirmation process for Judge Mukasey in an attempt to force compliance by the Bush administration with certain demands on other issues. That kind of political extortion would be wrong. The Justice Department needs leadership now, and Judge Michael Mukasey is qualified and ready for duty now. During my 31 years in this body, we have taken an average of 3 weeks to move an Attorney General nominee from nomination to confirmation. There is no reason we cannot meet that standard with the excellent and well-qualified nominee now before us. The same two obligations apply to nominations to the Federal bench. Let me repeat, we must focus on a nominee's qualifications through a process that respects the separation of powers. It is a curious fact of recent American history that, like the situation today, the last three Presidents each faced a Senate controlled by the other political party during his last 2 years in office. Two of those presidents were Republicans, one was a Democrat. During those last 2 years of a President's tenure, the Senate confirmed an average of 91 judges, 74 to the U.S. District Court and 17 to the U.S. Court of Appeals. This is only one way of measuring confirmation progress, and I realize some may not care a bit about what has happened in the past. But for those who do, I simply offer this as a yardstick, a gauge of the progress we are making today. The last 2 years of those previous Presidents' tenures are an obviously parallel measure for us today, since we are in the last 2 years of President Bush's tenure. We are nearing the end of September and have confirmed just three judges this year to the U.S. Court of Appeals. The last one was nearly 5 months ago. At the same point in this same year during those last three administrations, the Senate had confirmed an average of six appeals court nominees, twice as many. Meanwhile, the vacancy rate on the U.S. Court of Appeals continues to rise, and is nearly 10 percent higher than when President Bush was reelected. By raising this issue, I run the risk of some talking about what they like to call pocket filibusters of Clinton nominees. This cute but profoundly misleading phrase is intended to suggest that the Republican Senate blocked Clinton judicial nominees, the number they use varies all the time, who all could have been confirmed. I will say just two things about this well-worn mantra. First, a certain number of nominees of every President remain unconfirmed for a variety of reasons. Anyone who pretends otherwise is trying to mislead the American people about how the confirmation process actually works. Some Clinton nominees were withdrawn, others were opposed by home- State Senators, others were nominated too late to be evaluated. Honestly taking these and other factors into account shows that the margin of error by these critics tops an astonishing 400 percent. The second response is simpler. President Clinton appointed 377 Federal judges with a Senate controlled by the other party for 6 of his 8 years in office. This is second only to President Reagan's 383 judicial appointees with a Senate controlled by his own party for 6 of his 8 years in office. We need to make more progress confirming judicial nominees. The needs of the judiciary and the yardstick of history indicate that we are not doing our duty. President Bush has the lowest judicial confirmation rate, overall, and for appeals court judges in particular, of any President during my three decades in this body. Instead of making the confirmation progress that we should, we see a series of steadily changing standards, whatever it takes to defeat the nominations of good men and women. I have spoken here on the floor several times about the attack on Judge Leslie Southwick, nominated to the U.S. Court of Appeals for the Fifth Circuit. Opponents urge his defeat on the basis of just two of the 7,000 cases in which he participated, on the basis of two concurring opinions he did not write--not because he applied the law incorrectly, but because the opponents do not like the result of him applying the law correctly. That standard is wrong and I hope it does not succeed. I have here the Washington Post editorial from last month and I agree with its title. Judge Southwick is indeed qualified to serve. The editorial says that while the Post does not like the results in the two cases that opponents highlight, they cannot find fault with Judge Southwick's legitimate interpretation of the law. Judges are not supposed to deliver results that please this or that political constituency. Judges are supposed to correctly interpret and apply the law. Judge Southwick is committed to that judicial role and he should be confirmed. Now we see an attack on another nominee to the same court, Judge Jennifer Elrod. When the Judiciary Committee reported her nomination to the floor yesterday, one of my Democratic colleagues questioned her qualifications for the position. Judge Elrod, who currently serves on the State court trial bench in Texas, graduated cum laude from Harvard Law School and joined the State trial court bench after 8 years of private practice. For a dozen years, she served on the board and eventually chaired the Gulf Coast Legal Foundation, one of the largest legal aid organizations helping the poor in southeastern Texas. Judge Elrod has as much judicial experience as did Sandra Day O'Connor when she was unanimously confirmed to the Supreme Court of United States. In fact, when you include Judge Elrod's 2 years clerking for U.S. District Judge Sim Lake, Judge Elrod has more judicial experience, and more Federal court experience, than did Justice O'Connor. I voted for Justice O'Connor, I certainly believed she was qualified for the Supreme Court, and I know that Judge Elrod is qualified for the Fifth Circuit. But Democratic colleagues in the Judiciary Committee also questioned Judge Elrod's fitness for the Fifth Circuit because of her race. One colleague said that we must consider the race of sitting judges as well as judicial nominees as we proceed through the confirmation process. The implications of this view are troubling, to say the least. This means that no matter what a nominee's qualifications, no matter what her experience or background, no matter what she would bring to the bench, a nominee's race can, and some apparently believe even should, trump her merit. Appointing judges based on race is an inappropriate standard that I cannot accept. Like Judge Southwick, Judge Elrod has been nominated to a vacancy open so long that the Administrative Office of the U.S. Courts has designated it a judicial emergency. Like Judge Southwick, Judge Elrod should be confirmed without further delay. Evaluating nominees and deciding whether to consent to their appointment is a unique and profound responsibility of this body. As we examine the nomination of Judge Mukasey to be Attorney General or the nominations of Judge Southwick and Judge Elrod to the Fifth Circuit, I urge my colleagues to focus on their qualifications. I urge my colleagues to fulfill our responsibility through a process that respects the separation of powers. I urge my colleagues to reject inappropriate standards such as political litmus tests or race. Our judiciary is the best and most independent in the world, and I hope we will preserve this tradition in our confirmation actions and decisions in the weeks and months ahead. Exhibit 1 Hon. Harry Reid, Majority Leader, U.S. Senate, Washington, DC. Hon. Patrick Leahy, Chairman, Committee on the Judiciary, U.S. Senate, Washington, DC. Hon. Mitch McConnell, Minority Leader, U.S. Senate, Washington, DC. Hon. Arlen Specter, Ranking Member, Committee on the Judiciary, U.S. Senate, Washington, DC. Dear Majority Leader Reid, Minority Leader McConnell, Chairman Leahy, and Ranking Member Specter: We served as law clerks for the Honorable Michael B. Mukasey, former Chief Judge of the United States District Court for the Southern District of New York and the President's nominee for Attorney General of the United States. Each of us had the privilege of working closely with Judge Mukasey and observing this man of great intellect, integrity, honor, and judgment. We write to express our enthusiastic support for Judge Mukasey's nomination. Judge Mukasey's reputation as a careful and wise jurist is well deserved. In each of his cases, Judge Mukasey based his decisions--always thoughtful, carefully crafted, and well- reasoned--on the application of governing laws and legal principles to the facts. As a trial judge, he controlled the courtroom through his decisiveness and mastery of the rules of evidence. In the performance of his judicial duties, the Judge taught us the importance of modesty and humility, for he recognized that with his position came great responsibility that had to be exercised prudently and with care. All who appeared before him were treated with fairness and respect. And as Chief Judge of the district for six years, he managed one of the nation's busiest and most respected courthouses, all the while attending to a full docket of cases. Because of the close relationship between law clerk and judge, we came to know Judge Mukasey not only as a jurist, but also as a person. The Judge is kind, caring, loyal, ethical, and modest, with a disarming wit and robust sense of humor. He was a wonderful teacher, sharing with us his insights into life, law, and lawyering. Even after leaving our clerkships, the Judge has joined in our significant life events and provided invaluable advice--from attending our weddings, to visiting us following the births of our children, to assisting us with career choices. He remains a true friend and mentor. Finally, Judge Mukasey is deeply patriotic and has spent most of his career in public service, first as an Assistant United States Attorney--a job he speaks of with great pride even years later--and then as a judge. Notwithstanding the immense imposition on him and his family that resulted from the terrorism cases over which he presided, the Judge proceeded without complaint or hesitation, seeing it as part of his duty to the country he loves. The President has now asked Judge Mukasey to serve our country again, this time as Attorney General of the United States. We are certain that he will make an outstanding Attorney General. Judge Mukasey's keen intelligence, independence and judgment will bring to the country as a whole and to the Department of Justice in particular strong leadership and integrity. We urge you to confirm him as Attorney General without delay. Sincerely, Steven M. Abramowitz, Clerk for Judge Mukasey, 1990-91; Laura Adams, Clerk for Judge Mukasey, 1992-93; David Altschuler, Clerk for Judge Mukasey, 2005-06; Elisabeth Bassin, Clerk for Judge Mukasey, 1989-90; Matthew Beltramo, Clerk for Judge Mukasey, 1997-98; Heana H. Kutler, Clerk for Judge Mukasey, 1995-96; David Leinwand, Clerk for Judge Mukasey, 1991-92; Justin D. Lerer, Clerk for Judge Mukasey, 2002-03; Russell L. Lippman, Clerk for Judge Mukasey, 2001- 02; and Nicole Mariani, Clerk for Judge Mukasey, 2005-06. Babette Boliek, Clerk for Judge Mukasey, 1998-99; William A. Braverman, Clerk for Judge Mukasey, 1994-95; Gidon M. Caine, Clerk for Judge Mukasey, 1988-89; Andrew J. Ceresney, Clerk for Judge Mukasey, 1996-97; Daniel Park Chung, Clerk for Judge Mukasey, 2004-05; David Cross, Clerk for Judge Mukasey, 2003-04; Thomas Dahdouh, Clerk for Judge Mukasey, 1988-89; Inayat Delawala, Clerk for Judge Mukasey, 2004-05; Anne Osborne Martinson, Clerk for Judge Mukasey, 1990-91; and Zachary S. McGee, Clerk for Judge Mukasey, 1997-98. Sanjay Mody, Clerk for Judge Mukasey, 2003-04; Shawn Morehead, Clerk for Judge Mukasey, 2000-01; Florence Pan, Clerk for Judge Mukasey, 1993-94; Frank Partnoy, Clerk for Judge Mukasey, 1992-93; Mickey Rathbun, Clerk for Judge Mukasey, 1987-88; Katherine J. Roberts, Clerk for Judge Mukasey, 2001-02; Jenny C. Ellickson, Clerk for Judge Mukasey, 2003-04; Michael Farbiarz, Clerk for Judge Mukasey, 1999-00; Jesse M. Furman, Clerk for Judge Mukasey, 1998-99; and Bruce Goldner, Clerk for Judge Mukasey, 1993-94. Nola Breglio Heller, Clerk for Judge Mukasey, 2004-05; Mary Holland, Clerk for Judge Mukasey, 1989-90; Michael Jacobsohn, Clerk for Judge Mukasey, 2005-06; Emil A. Kleinhaus, Clerk for Judge Mukasey, 2002-03; Ilissa Rothschild, Clerk for Judge Mukasey, 1987-88; Andrew A. Ruffino, Clerk for Judge Mukasey, 1995-96; Sarah Russell, Clerk for Judge Mukasey, 2002-03; Hattie Ruttenberg, Clerk for Judge Mukasey, 1991-92; Eli Schulman, Clerk for Judge Mukasey, 1999-00; and Ian Shapiro, Clerk for Judge Mukasey, 2000-01. Paul Spagnoletti, Clerk for Judge Mukasey, 2001-01; Debra Squires-Lee, Clerk for Judge Mukasey, 1996-97; Alisa Jancu Kohn, Clerk for Judge Mukasey, 1994-95; and David B. Toscano, Clerk for Judge Mukasey, 1994.

Mr. HATCH. I personally thank my colleague from Alaska for allowing me to go forth and to make these comments. I am grateful to her. I yield the floor.

Mr. HATCH

Mr. HATCH. I rise today to congratulate my fellow Senators on the passage of the Gang Abatement and Prevention Act of 2007. This vital legislation makes important changes to the federal criminal code which will allow a more effective response to the ever growing threat that violent street gangs present to our society. Americans are acutely aware of the myriad problems brought about by the influence and prevalence of criminal gangs in this country. I have long shared this concern, and introduced legislation over 10 years ago that attempted to address the problem. Senator Feinstein joined me in that effort, and since that time has pursued this matter with a vigor and tenacity that should make the residents of California proud. I want to offer my heartfelt congratulations and appreciation to Senator Feinstein for her tireless efforts in sponsoring this bill, and am pleased that our combined efforts over the years have brought us one step closer to having this legislation signed into law. I believe that all members of the Senate share their constituents' desire to see a diminished role of gangs and associated violence in our communities. The question is very simple: How do we achieve this goal? The prevailing thought is to either modify the criminal code or provide financial assistance that enhances procedures and programs that have been proven to effectively reduce gang participation. The bill that passed today does both of these things, and it is my hope that the vital tools in this initiative can be utilized by state and local personnel to provide for a greatly diminished threat from criminal street gangs. One thing I want to make perfectly clear is that my involvement with this issue does not diminish my concerns with the federalization of crimes. I want to read a few sentences I said on the Senate Floor in 1996 when introducing the Federal Gang Violence Act of 1996: ``Our problem is severe. Moreover, there is a significant role the Federal Government can play in fighting this battle. I am not one to advocate the unbridled extension of Federal jurisdiction. Indeed, I often think that we have federalized too many crimes. However, in the case of criminal street gangs, which increasingly are moving interstate to commit crimes, there is a very proper role for the Federal Government to play.'' I said this in 1996, and my thoughts have not changed. The federal government too many times hands out money like a broken ATM, subsidizing projects that are more appropriately left to the states. However, the fact that Gangs have operations which spread throughout our country necessitates a federal law enforcement response. I am confident that Americans would approve of their tax dollars being effectively utilized in attempts to reduce gangs and criminal activity, and provide a safer environment for their families. The young people who join criminal gangs have made an unfortunate choice to squander all of the opportunities available in their life, opportunities which are abundant in our great nation. But even worse, their choice to participate in violent gang crimes put the lives of innocent Americans in danger. The same innocent people who have rightly chosen to live their life in a productive manner benefiting fellow citizens. Numerous cities in my home state of Utah, such as Orem, St. George, and Provo are facing an increase in gang activity. National gangs, like MS-13, are expanding their presence in Utah. Law enforcement is also reporting an increase in gang members relocating from areas of Southern California. It is vital that we provide immediate assistance to cities that are in the beginning stages of a battle with highly sophisticated national gangs. If a city can't deal with this problem swiftly and severely, then the gangs will fester like a disease, amplifying to an unmanageable level. We have seen this throughout the country, and I am dedicated to ensure that the cities in Utah and other states receive appropriate and necessary assistance from Congress to increase community prevention efforts. I applaud the efforts of lawmakers whose tireless efforts produced this bill, and am hopeful that the funds provided for prevention and mentoring can be utilized to help negate the persistent efforts of gangs to augment their ranks with additional kids. Life provides many choices, and I hope that our youth will find the strength and courage to resist the gang lifestyle. I recognize that there is no mechanism which can easily remove the scourge of criminal gangs, but am confident that this bill will provide resources which can enhance and amplify the efforts of dedicated personnel who endeavor to bestow positive influence to our communities.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to introduce The Action Plan for Public Land and Education Act of 2007. This bill would restore some balance to the way education is funded in many of the western States, where a large proportion of public land is owned by the Government. This bill would authorize the Secretary of the Interior and the Secretary of Agriculture to grant a small portion of these Federal lands to the states so they can generate the much needed education revenue. I wonder how many of my colleagues know that 10 of the 12 States with the largest pupil-per-teacher ratios are in the West? These 10 western States also have the lowest growth in per-pupil expenditures. And these ratios will only grow worse as growth in the West continues to out-pace the rest of the country. In fact, three of the fastest growing counties are in Utah. I would like to take a moment to discuss how the west has gotten into this situation. Let us take a look at Utah's history, which began when in July of 1894, the State Enabling Act was approved. This act allowed ``the People of Utah to form a Constitution and State Government, and to be admitted into the Union.'' However, Section 9 of the enabling act sets forth that ``five percent of the proceeds of the sales of public lands lying within said State, which shall be sold by the United States subsequent to the admission of said State into the Union . . . shall be paid to the said State, to be used as a permanent fund, the interest of which only shall be expended for the support of the common schools within said State.'' The Federal Government never followed through on its promise. Our bill, the APPLE Act, S. 2072, would direct the Government to deliver on that promise. The Government's lack of follow-through on its promise is only exacerbated by the lack of a sales tax base in the west. Sales tax revenue, as we all know is generated on private lands. On average, the Federal Government owns 52 percent of the land located in the 13 western States, while the remaining States average just 4 percent Federal land ownership. Federal ownership in Utah is about 65 percent, second only to Nevada. The problem is that sales tax is not being collected on these Federal lands, and public education is funded largely through sales tax revenues. Some may say that the west's education funding deficit is due to a lack of commitment or effort by the States. This is not true. The fact is that allocations to public education, by percentage, in the West matches or exceeds the rest of the Nation. In fact, western States pay on average 11.1 percent of their personal income to State and local taxes, whereas residents of the remaining States pay 10.9 percent. I urge my colleagues to lend their support to addressing the west's education funding shortfall by helping me to pass the Action Plan for Public Land and Education Act of 2007.

Mr. HATCH

Mr. HATCH. Mr. President, I am pleased to join my colleagues, Senator Clinton and Senator Reid, in introducing today the Coordinated Environmental Health Network Act. In modern society, we often take for granted the advances in public health measures made during the last century. Initiatives like drinking water protections and food safety programs have helped to counterattack infectious disease and add up to 25 years to the average human life expectancy. Yet America today is faced by new public health challenges along with recurrence of chronic and infectious diseases. Chronic diseases account for approximately 70 percent of all deaths every year, most of which are preventable. These diseases also cause major limitations in daily living for about 25 million Americans and contribute more than $750 million to annual health care costs. As an example of a new health threat, the West Nile virus had never before been detected in this hemisphere before the 2000 outbreak in New York. In 2007 alone, 1,982 human cases have been reported in almost every State and the District of Columbia. Food-borne illnesses are estimated to cause 5,000 deaths a year; and asthma, a chronic condition, is the number one reason children miss school and is also expected to affect 29 million Americans within the next decade--more than twice the current number of people with asthma. We know that the environment plays an important role in health and human development; but we do not know to what extent. Scientific researchers have linked specific diseases and health effects to certain environmental causes--for instance, infected mosquito bites and the West Nile virus, or asbestos and lung cancer--but many other links remain unproven, such as those between aluminum and Alzheimer's disease, or exposure to disinfectant byproducts and bladder cancer. The bottom line is that, if we are going to prevent disease, researchers need more complete information about environmental factors, their effect on people, and the resulting health outcomes. The environmental exposure, biomonitoring, and incidence of chronic and infectious diseases data that do exist are not readily accessible by all the appropriate systems. Although the Centers for Disease Control and Prevention, CDC, has begun efforts in this area through its National Environmental Public Health Tracking Program--in which my home State of Utah is a participant--currently, no network exists to track environmental health data full-scale at the national level. Furthermore, at the state and local levels, environmental quality programs and classic public health programs are almost always based in different agencies. This disconnection among environmental health projects at local, state, and Federal levels jeopardizes our protection against environmental health threats. The threat of terrorist attacks with biological or chemical weapons has most certainly become a major public health concern; but it is important to keep in mind that weaknesses in the environmental public health infrastructure have led to large-scale vector-, water-, and food-borne outbreaks of infectious disease. In the 1998 Institute of Medicine, IOM, Report ``The Future of Public Health'', and the Pew Environmental Health Commission report ``America's Environmental Health Gap: Why the Country Needs a Nationwide Health Tracking Network'', this fragmentation is clearly outlined as contributing to disjointed policy development, imbalanced service delivery and a generally weakened public health effort. The IOM report recommended that state and local health agencies strengthen their capacities for identification, understanding and control of environmental problems as health hazards. The Pew Commission report concluded that the environmental health gap results from the lack of basic information that could document possible links between environmental hazards and chronic disease, as well as information that our communities and health professionals need to reduce and prevent such health problems. In response to this problem, the Pew Commission proposed a nationwide health tracking network. Thirteen top public health groups, including the American Cancer Society, American Lung Association, and American Public Health Association endorsed the Pew report. This endorsement makes clear the message that the complexity of today's environmental public health problems requires coordinated responses from multiple agencies and organizations. The scientific community has also been asking for the ability to bridge this environmental health gap. In a 2004 Environmental Health Perspectives article, a consortium of public health researchers wrote: The ``building blocks'' of knowledge provided by a nationwide environmental public health tracking network will enable scientists to answer many of the troubling questions we are asking today about what is making us sick. The result will be new prevention strategies aimed at reducing and ultimately preventing many of the chronic diseases and disabling conditions that afflict millions of Americans. The common theme from these reports, and the message received from top public health organizations and researchers, is that there is a pressing need to establish environmental public health leadership at the Federal level. This legislation will help provide that leadership by establishing a Coordinated Environmental Public Health Network. It will make available the infrastructure by which local, state, and Federal agencies can share environmental public health information. This bill is designed to build upon the recommendations from the scientific and public health communities, as well as the program that the CDC has already begun to carry out. The Coordinated Environmental Health Network will connect state systems that are tracking chronic diseases, environmental exposures, and other risk factors so that the causes of priority chronic diseases can be identified, addressed, and ultimately prevented. Public health officials, scientific researchers, and the general public will have the information they need to fight against chronic disease. The Coordinated Environmental Health Network Act will provide states with grants to help develop the infrastructure they need in order to participate in the Nationwide Network. In order to educate the public and provide the information needed to fight chronic disease, this bill calls for a National Environmental Health Report that will provide annual findings of the Nationwide Health Tracking Network. This bill also aims to expand our environmental health infrastructure through the establishment and operation of regional biomonitoring labs, Environmental Health Centers of Excellence, applied epidemiology fellowships, and the John. H. Chafee Environmental Health Scholarship Program. A survey of registered voters conducted for the Pew Environmental Health Commission indicated that most Americans say that taking a national approach to tracking environmental health should be a priority of government at all levels. Without comprehensive environmental health tracking, policymakers and public health practitioners lack information that is critical to establishing sound environmental health priorities. In addition, the public is indirectly denied its right to know about environmental hazards, exposure levels and health outcomes in their communities-- information they want and have every reason to expect. Our country has one of the best health care systems in the world. Doctors are now successfully treating illnesses that were once considered debilitating or even terminal because we have made great investments in researching cures and finding treatments. It is time to make the same investment in preventing people from becoming sick in the first place. This bill is an important step forward in making that investment in the health of America, and I urge my colleagues to support it.

Mr. HATCH

Mr. HATCH. As the Senate completes its consideration of H.R. 3580, the Food and Drug Administration Amendments Act of 2007, I want to take this opportunity to commend publicly the Food and Drug Administration and especially to express support and appreciation to the dedicated FDA employees who work so hard to ensure the safety of our drug and food supply. They are led by a very capable and hard-working Commissioner, Dr. Andrew von Eschenbach. In our race to legislate and regulate, we often forget the impact of our actions on agency employees and their ability to safeguard American consumers. And so I want to take this opportunity to thank them for their work. While I will not belabor the point here, as the legislation makes clear, the agency is operating under severe funding constraints. That is a pressing public health issue of great priority and the Congress must work to address it in a meaningful way. With passage of this legislation today, we will end the protracted game of ``chicken'' that threatened the jobs of hundreds of FDA employees, the stability of the agency, and indeed the integrity of Congress, an institution which has been under public criticism for not doing its job. I am proud to support the passage of H.R. 3580. I want to applaud the efforts of HELP Chairman Kennedy and Ranking Republican Member Enzi. They have worked tirelessly to ensure this bill would be completed before the expiration of the user fee programs at the end of this month. They have worked in a bipartisan way and they have worked very hard to embrace the views of each and every member of our committee. Let me highlight some of the important components of the FDARA bill. First, it is imperative that we continue the drug and device user fee programs. This is true for one simple fact--the agency relies greatly on the funding from these programs, and without it there would be unconscionable delays in drug and device reviews. This is particularly important for Utah, a State with the hallmark of innovation, a State which is the home to countless drug and device manufacturers. And while there are some problems with how these programs have worked--problems I have been pursuing, and will continue to pursue, with the FDA--all in all it must be recognized that there is no alternative to the user fee programs being continued. The drug safety provisions that Chairman Kennedy and Ranking Minority Member Enzi developed will be seen as an important hallmark in our Nation efforts to improve the safety of pharmaceuticals that Americans rely on. The food safety legislation that our colleague Senator Durbin developed--again, that is a vital component. I am supportive of that language, and especially appreciative to my colleagues for including the three pieces of language Senator Harkin and I authored to make certain that the new food reporting system did not override the Dietary Supplement Health and Education Act's regulatory structure and that it did not supersede the serious adverse event reporting system for dietary supplements enacted last year--the Dietary Supplement and Nonprescription Drug Consumer Protection Act. This legislation also includes many other laudable provisions. One particular provision in this legislation establishes a new and enhanced mechanism for the prompt consideration of new safety-related information and sets forth strict timelines for the evaluation of such new data. That provision is designed to ensure that all potential safety-related labeling changes are promptly raised and duly considered by the agency in carrying out its statutory duty to oversee the appropriate and accurate content of a drug's labeling. This new procedure is designed to implement a more thorough and regularized methodology for the consideration and implementation of safety-related labeling changes and to ensure that FDA is the ultimate authority in making certain that drug labels convey safety information in a clear and consistent way. This provision, which adds a new section 505(o) to the Federal Food, Drug and Cosmetic Act, is designed to ensure that both the agency and pharmaceutical companies are able to modify quickly with the agency's approval drug labels so that physicians are alerted promptly to new or increased risks associated with a drug. The provision does not affect the agency's general policy on labeling or its current labeling rules and policy. Also, the legislation promotes pharmaceutical and medical device advancements in pediatric therapies. The bill reauthorizes the Best Pharmaceuticals for Children Act and the Pediatric Research and Equity Act which have been vital for important research used by doctors and parents. The final language on both these provisions is a good compromise between the House and Senate bills. Finally, it is my profound regret that the bill we consider now does not contain the Biologics Price Competition and Innovation Act, legislation that Senators Kennedy, Enzi, Clinton, Schumer, and I have authored. This bill is intended to offer consumers access to lower cost biosimilar products, copies of such important medications as insulin or human growth hormone, while preserving the incentives for researchers, universities and manufacturers to develop and market the innovator biologics. I am extremely disappointed that the bill could not be contained in H.R. 3580, but I recognize the importance of allowing the House to develop its version in regular order. It remains my high priority, and I believe the priority of my colleagues as well, that this legislation be enacted in 2007.

Mr. HATCH. Mr. President, I wish to take this opportunity to clarify one issue related to the language on citizens' petitions and petitions for stay of agency action which is included in FDARA. As my colleagues are aware, I was a cosponsor of the citizens' petition amendment included in the Senate-passed bill, and I was pleased to work closely with my colleagues in the Senate--Senators Kennedy, Enzi, Brown, Stabenow, Lott and Thune to develop an acceptable compromise with the House. I understand the importance of making certain that generic drug approvals are not delayed unnecessarily, which is the intent of this amendment.

Mr. HATCH. As my colleagues are aware, we had a number of discussions about this provision, and one issue we worked hard to balance was the need for the Food and Drug Administration to have adequate time to review any meritorious issues raised by a petitioner against the importance of not holding up the Abbreviated New Drug Applications--or ANDAs--or applications submitted under section 505(b)(2) of the Federal Food, Drug and Cosmetic Act. Our colleagues, Senators Brown and Stabenow, were particularly forceful in their arguments that there should be a deadline for FDA action on a petition, but that the agency could have the ability to delay review of an application if it found that the petition raised a legitimate public health issue. My concern, which I want to discuss with the chairman, goes to the discussions we had about the operation of that language. In particular, I want to discuss the ability of the agency to conserve its resources and not waste time acting on petitions that do not merit review. Indeed, the concept we discussed over the course of many days was that the agency would have the ability to deny a petition or a supplement if the petition were based on meritless or frivolous issues. We all recognized, however, that defining ``meritless'' and ``frivolous'' is imprecise at best. So, the final language contained in the bill we consider today says that the agency may deny a petition at any point if the Secretary determines that it was submitted ``with the primary purpose of delaying the approval of an application and the petition does not on its face raise valid scientific or regulatory issues . . .'' MR. KENNEDY. The Senator from Utah is correct.